Colorado is the latest to join the growing list of states prohibiting private employers from inquiring into, or requiring disclosure of, an applicant’s criminal history on an initial employment application, effective September 1, 2019. The law also prohibits employers from placing statements on job ads or employment applications that individuals with criminal history may not apply.
Employers hiring in states with “Ban the Box” legislation need to ensure job applications do not include questions that ask about criminal history. Other states that already have Ban the Box legislation include: California, Connecticut, District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. There are some smaller city and county jurisdictions that also have similar legislation.
The new Colorado law does not prohibit employers from running authorized background checks, however. Best practice is to run those after a conditional offer of employment has been made. The state law also does not govern the actions an employer must take before denying an applicant a position based on criminal history, but the Fair Credit Reporting Act’s (FCRA) disclosure requirements for adverse action will still apply. Based on federal law, it’s advisable to base any employment actions on criminal history that is directly related to the position and would adversely impact the company, its employees, or its customers.
Multistate employers should exercise caution when hiring employees in these states as there are differences in the restrictions and requirements of each law. Employers with operations in these states should remove any criminal history-related questions from employment applications and ensure everyone involved in the hiring process is aware of applicable laws.
Questions about compliance?
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The material presented here is educational in nature and is not intended to be, nor should be relied upon, as legal or financial advice. Please consult with an attorney or financial professional for advice.